Changes could place pressure on the civilian employment relationship

The Ministry of Defence recently announced its plans to increase the number of reservists in the Armed Forces. The next decade will see a £1.8 billion investment by the Government into the Reserve Forces and the number of army reservists swelling to 30,000 troops. The MoD identified in its green paper, ‘Future of Reserves in the Armed Forces’ (published in November 2012), that its ambitious plans will necessarily impact upon civilian employers. In particular, its proposals around increased levels of mandatory training and frequency of deployment could potentially have implications for a reservist’s civilian employment relationship.

A working party, chaired by Paul McFarlane, was set up by ELA to respond to the MoD’s green paper. Of particular concern was how civilian employers would manage any increase in mandatory training requirements of reservists. It is proposed, for instance, that annual mandatory training of army reservists is increased to 40 days a year (mainly over evenings and weekends), with an annual training camp of 16 days.

The working party felt these changes could place pressure on the civilian employment relationship. Whilst the intention is for training to take place on evenings and weekends, many reservists are in fact contractually obliged to work non-standard hours by their civilian employers.

An employee’s right to take time off work during working hours to perform public duties is governed by s.50 of the Employment Rights Act. However, this provision does not cover duties as a reservist. The reservist therefore faces a choice between failing to attend mandatory training (potentially resulting in discharge as a reservist) and failing to attend civilian employment (potentially resulting in disciplinary action).  As a possible solution, the working party recommended an amendment to the list of public duties contained in s.50 ERA so as to grant reservists the right to unpaid time off for mandatory military training.

In the same vein, the working party also suggested amendments to the Working Time Regulations to clarify that a civilian employer will not be in breach of its obligations if a worker is permitted to use part of their daily or weekly rest periods to undertake evening or weekend mandatory military training. The existing position is felt to be unclear.

Additional proposals made by the working party in response to the consultation included:

• the introduction of legislation to prevent discrimination against reservists at the point of recruitment;
• reservists being given the right not to suffer detriment on similar terms to those who are absent from work to undertake jury service;
• reservists being granted continuity of employment during mobilised service (which they do not currently enjoy under the Reserve Forces (Safeguard of Employment) Act 1985 (RFSE));
• increased levels of compensation under RFSE;
• clarification of the employment status of reservists, particularly whether they attract protection under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

In relation to civilian employers, the working party also identified that the existing system available to organisations to claim financial assistance to cover salary costs incurred when an employee is mobilised required greater simplification. In addition, there should be increased notice of mobilisation to allow civilian employers to better prepare for the loss of their staff member.

The Government’s response to the consultation is expected later in the year.